State v. Pontery

Heher, J.

(concurring in reversal). At common law, the jurors in criminal cases were not permitted to separate, even with the consent of the accused; and in this country the dispersal of the jury in the exercise of judicial discretion came by statute, limited in most of our state jurisdictions to noncapital cases. 53 Am. Jur. 629 et seq.; 34 A. L. R. 1128, 1132, 1140, 1146; 79 A. L. R. 826; 21 A. L. R. 2d 1100, 1105, 1107, 1109. The rule against separation is intended to secure an impartial and unbiased verdict by a *479 jury immune to extraneous and prejudicial influences. And, because of the gravity of the issue, seclusion of the jury has been deemed of the very substance of a fair trial in capital cases.

In Peiffer v. Commonwealth, 15 Pa. 468 (Sup. Ct. 1850), Gibson, C. J. said:

“Even the forms and usages of the law conduce to justice; but the common law, which forbids the separation of a jury in a capital case before they have been discharged of the prisoner, touches not matter of form, but matter of substance. It is not too much to say that if it were abolished, few influential culprits would be convicted, and that few friendless ones, pursued by powerful prosecutors, would escape conviction. Jurors are as open to prejudice from persuasion as other men, and neither convenience nor economy ought to be consulted, in order to guard them against it. Let them have every comfort compatible with their duties; but let them not be exposed to the converse of those who might pervert their judgment.”

In the words of Beasley, C. J., the sequestering of the jury in all capital cases was a basic requirement of ancient English law—“an institute of law which is wholly beyond the control of the court, and which belongs to the citizen as of right”; “a requisition of absolute law” which “is not, in any measure, a matter resting in the discretion of the court.” State v. Cucuel, 31 N. J. L. 249 (Sup. Ct. 1865). The Chief Justice continued:

“No one acquainted with the subject will deny that this practice prevailed for many successive ages, and so far as is known to me, it has never been departed from by any English judicature. In this state, almost from the epoch of its settlement by our ancestors to the present moment, as we are informed by history, both printed and oral, the same formula has been observed. Prom these admitted incidents then, it would seem to be incontestably plain, that the formula itself is invested with every possible claim, to be considered a part of that legal system which this court is bound to sustain and administer. It is not a matter of unsubstantial form, but one of the means provided by the law, to reach the result of a verdict founded exclusively on the evidence delivered in open court in the presence of the parties. It is, therefore, as much a right of the defendant as is any other act which the law requires, by immemorial usage, to be performed at the trial. It is altogether impossible to admit the right of the court, at its pleasure, to waive the per *480 formance of this act. If the seclusion of the jury can be dispensed with before the charge of the court, why not dispense with it after such charge? And if the power to alter in one respect the admitted mode of ancient procedure is conceded to the court, what power to alter the forms of the trial can be denied? * * * It appears to be altogether illogical, admitting the great antiquity of the form of the separation of the jury from the mass of the community in capital cases, to maintain the right of the court to abolish such form, without at the same time admitting the right of the court to retain or set aside, at will, all the other essential circumstances which go to make up the proceedings of a trial at law. But it is enough for us to know that this court has heretofore laid claim to no such power; that it has ever conformed its practice, with implicit obedience, to the ancient usages, leaving to the legislative department of the government the task to modify the law, so as to place it in harmony with the ever shifting conditions of human life.”

In 1932, the old Court of Errors and Appeals unanimously reaffirmed the principle of jury seclusion as protective alike of society and the accused. State v. O'Leary, 110 N. J. L. 36 (E. & A. 1933).

This ancient usage of the common law continues in force until modified by constitutional authority. 1941 State Constitution, Art. XI, sec. 1, par. 3; 1844 Constitution, Art. X, par. 1. The sequestering of juries in capital cases is a peremptory rule of substantive law to serve the common right and individual justice.

It was the judge who broached the subject of separation, not counsel for the accused. Immediately after being sworn, the jury were escorted from the courtroom for a “short recess,” and the judge thereupon inquired of the prosecutor as to whether it was his “intention to ask for the death penalty,” stating that the inquiry was put “with the thought of possibly not sequestering the jury” and “both the prosecutor and the defense attorney ought to make statements as to their feelings about the sequestering of the jury.” The prosecutor replied that the State would ask for a verdict of murder in the first degree, but would not “demand” the death penalty. The judge said that, there being no demand for the death penalty, “it seems to me that it would not be necessary to sequester the jury,” but he “would like to hear *481 from the defense attorney first on that question.” Counsel responded that “if the State does not seek the death penalty,” he could “see no reason why the jury should be sequestered.” The prosecutor thought otherwise; “the jury should be sequestered” he suggested; and the judge said: “All right. That will be the situation at your request. I certainly would not grant it otherwise.” The judge had the notion that the question was one of discretion, but he would not direct the seclusion of the jury if either side thought otherwise. Counsel for the accused then indicated, as I read the record, that if it were a question of discretion, the accused would be satisfied either way. But the judge reiterated that in view of the prosecutor’s attitude, the jury should be sequestered. At the close of the testimony on the following day, after a conference with counsel out of the presence of the jury, not incorporated in the appendix, the judge informed the jury that since the State “was not asking” for the death penalty, a “capital offense” was not involved, and so there was no need for the seclusion of the jury; that counsel for the accused and the prosecutor had “both indicated” they would have “no objection” if the judge permitted the separation of the jury, and such would be the order.

Counsel for the accused' should not have been subjected to this solicitation of consent, for such it was, even in the absence of the jury. What assurance could there be that the jury would not learn of counsel’s refusal of consent to their separation, a fear that would deter insistence upon the right.

Apropos of this, Chief Justice Gibson said in the cited case of Peiffer v. Commonwealth:

“A juror is charged with a prisoner as soon as he has looked upon him and taken the oath; for he cannot be withdrawn. The trial has commenced, and the prisoner stands before him as one of his judges. In this case the jury were allowed to separate after they were empannelled and sworn. True, that took place with the prisoner’s consent; but there is right reason and sound sense in Chief Justice Abbott’s remark, in Rex v. Wolfe (1 Chitty’s Rep. 401), that he ought not to be asked to consent. Who dare *482 refuse to consent, when the accommodation of those in whose hands are the issues of his life or death, are involved in the question? He would have to calculate the chances of irritation from being annoyed on the one hand, or of tempering on the other. The law is undoubtedly settled by precedent, that a prisoner’s consent to the discharge of a previous jury is an answer to a plea of former acquittal; but the instant a jury is discharged, the prisoner’s life is no longer in their power; or if he should be the cause of their being sent- back to protracted confinement, the value of a single chance in his wretched condition would disarm their resentment. Still, I think no consent of a prisoner, in the extremity of his need, ought to bind him.”

And in Hopt v. Utah, 110 U. S. 574 , 4 S. Ct. 202 , 28 L. Ed. 262 (1884), Justice Harlan declared:

“The public has an interest in his [the accused’s] life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods.”

I join in the conclusion of error in the instruction given that in the event of a conviction of murder in the first degree, “it must be with the recommendation of life imprisonment.” It is the exclusive province of the jury to fix the punishment. This, in virtue of N. J. 8. 2A :113-4. Neither the judge nor the prosecutor may determine this question. The statute provides, in imperative terms, that every person convicted of murder in the first degree “shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed.” And so, I cannot subscribe to the holding of the majority that the court “could properly have charged the jury that under these present circumstances it would assume, as did the prosecutor, that the death penalty would not be returned as it was not asked for,” an undue qualification, it would seem, of the concluding clause that “the jury could not be stripped of its right to do so given by the Legislature.”

*483 Otherwise, I concur in the disposition of the assignments of error.

Mr. Justice Oliphant concurs in this opinion.

Heher, Oliphant and Burling, JJ., concurring in result.

For reversal—Chief Justice Yandekbilt, and Justices Heher, Oliphant, Wacheneeld, Burling, Jacobs and Brennan—7.

For affirmance—None.